Уголовное наказание: понятие, система, объект назначения, состав отбывания. Монография

V The contents of the system of penalty is characterized by the following elements: 1) the system of penalty is socially conditioned by contemporary conditions of social life; 2) the system of penalty represents a complex (variety) of elements (measures of punishment, definite sub-systems); 3) elements of the system of penalty are interdependent and interact with each other (are interchangeable, mutually exclusive and compatible); 4) elements of the system of penalty are defined only by the criminal legislation and only this way they could bee amended and liquidated; 5) the number of elements is full and is not to be expanded;

VI. A number of types of punishments and other measures, provided by the foreign legislation, could be also applied in Russia. They are: 1) punishments for the legal entities (liquidation, term-less or term restriction of activities for the legal entity, performance of definite obligations by the legal entity within a definite term, appropriation, fine, promulgation of the sentence, etc.), applied in Belgium, Lithuania, Moldova, the USA, France, etc.; 2) penalty in the form of deprivation of some political or civil rights, suchlike measures are applied in Argentine, Belgium, Netherlands, P.R. of China, Lithuania, Norway, Poland and other states; in order to modernize the system of penalty, it is advisable to use the penal impact of definite types of penalty, applied in Russia for a number of years (i. e. deprivation of right to take definite positions or restriction of activities, fine, etc.);

VII. The system of the criminal penalty should be understood as a legal consequence of the system of crimes, characterized by definite contents, essence, form, order and conditions of application, functioning, bringing definite consequences and taking for definite socially useful purposes: restoration of social justice, correction of the convict and prevention of new crimes;

VIII. The object of imposition of the penalty should be understood as elements of legal status (situation) of a person, adjudged guilty in a crime, i. e. rights, obligations and legal interests, provided with the penal impact by the criminal legislation;

IX. The Article 43 of the Criminal Code of the Russian Federation should be amended by the fourth part, including the following, “objects of imposition of the criminal penalty could not be: human’s right for life; human’s right to defense his health; human dignity of a person, guilty in a commitment of a crime; nationality of a person and exile from the country; freedom of conscience and religion; right of access of the convict; right of the convict to communicate with the outer world;

X. The objects of imposition of the penalty could be classified “vertically”: general, generic, specific, direct and “horizontally”: basic (essential) and additional (substantive);

XI. Whether the compulsory character of commune and correctional working corresponds to the international acts, depends on the understanding of the term “the convict” within the international standards, either in a narrow or its wide sense. If it is treated in its wide sense, i. e. the contents of this notion includes both the category of the condemned and the category of the convicts, thus the analyzed penalties do not contradict to the international regulations. In case the notion of “the convict” is regarded in its narrow sense, i.e the category of “the convict” is not included, compulsory and correctional working contradicts to the international regulations. In this case, the mentioned types of penalty are to be applied only according to the advance consent of the convict. Thus, the following amendments should be made, “Compulsory working is imposed by the court only according to the advance consent of the convict”; 2) Part 1 Article 50 of the Criminal Code of the Russian Federation with the following, “Correctional working is imposed by the court only according to the advance consent of the convict”; 3) Part 1 Article 53.1 by the following, “Mandative working is imposed by the court only according to the advance consent of the convict”;

XII. The definition of the object for the convicts to work at, as well as the type and the character of the serviced working, as we see it, should be done only by the court. otherwise, the organs, executing the criminal penalty in the form of compulsory, correctional and mandative working could change the penal contents of this punishment. The court, defining the object for the convict to work at, should take into account, if possible, the type and the character of the serviced working and the point of view of the convict;